With the prospect of ailing former president General (r) Pervez Musharraf’s return to Pakistan, a debate has begun on whether this means his constitutional transgressions are being forgiven.
The former strongman is reported to be suffering from amyloidosis, a rare disease caused by an abnormal protein build-up in organs, which interferes with their normal functioning. He has been hospitalised in the UAE and family sources have indicated that he is not expected to recover. He was quoted as saying that he wished to spend the ‘rest of his life’ in Pakistan.
While acknowledging that the civil and military leadership assured them that his return would be facilitated, Musharraf’s family has said that they are considering significant ‘medical and legal’ challenges before shifting him to the country.
While Pakistan Muslim League – N (PML-N) supremo Nawaz Sharif and members of the coalition government have said they are ready to support his return on humanitarian grounds, others disagree.
General (retd) Musharraf, who seized power in a military coup against then elected prime minister Nawaz Sharif in 1999, faces a number of grave accusations from his period in power. In December 2019, he was sentenced to death in absentia for treason over his 2007 imposition of emergency rule. This verdict was challenged as the then PTI-led government and its backers in the country’s powerful security establishment threw their weight behind the exiled strongman. He faces accusations pertaining to the assassination of former prime minister Benazir Bhutto, as well as the killing of veteran Baloch leader Nawab Akbar Bugti – the latter of which had sparked the current phase of conflict in Balochistan.
‘Legal system cannot be halted for an individual’
Ahmed Bilal Mehboob, the head of Pakistan Institute of Legislative Development and Transparency (PILDAT), is of the opinion that General Musharraf is a citizen of this country and nobody can stop him from coming here. “However, the legal system and functioning of the court cannot be halted. The courts tried him according to the Constitution, and he cannot escape the law. He must be treated as someone else in his legal situation would,” he adds.
Former lawmaker Afrasiab Khattak agrees. “Musharraf could not be prevented from returning, but he ought to face due legal process like any other person who is under trial on charges of such a magnitude,” he told Friday Times.
Asked how, if at all, the former military dictator should be held accountable if he returns to the country, Ahmed Bilal Mehboob says his lawyers can appear before the court on his behalf. “It is not a matter about his person, but what is at stake here is a principle: whether or not people have the right to play with the Constitution of Pakistan in such a manner.”
He adds that if General Musharraf is required to give a statement of some sort before the court, and if he can, he ought to.
Ahmed Bilal notes that the purpose of this demand is not to humiliate either his person or the institution that he belonged to, but to safeguard the dignity of the Constitution. “Two things have to happen side by side here: the armed forces have to be reassured that this is not meant to tarnish their image, and the process of holding him accountable according to the constitution has to be upheld.”
Historian Ali Usman Qasmi, while commenting on the debate in the public sphere, says that in our collective psyche, we often tend to see death itself as a kind of closure.
“The worldly transaction is seen as having come to an end, and even if I held something against someone, the idea is that they are now going to be judged elsewhere. And so, the ‘aadab’ of how to conduct an enmity involves this idea that you do not take it beyond this life. The desire to live up to this ‘ideal’ may be driving some of the sentiment in favour of General Musharraf here,” he says.
State funeral for Musharraf?
When asked about the significance of a possible state funeral for the ailing Musharraf, Senator Khattak says: “If it were to happen, it would be an insult to the state itself. This is a person convicted of treason by the courts, after all. It would give the impression that there is no law or constitution here.”
Khattak recalls how General Yahya Khan was also given a state funeral with honours after his demise. “That was morally wrong, especially since the Hamood-ur-Rehman Commission on the 1971 breakup of Pakistan had called for Yahya Khan to be tried, but in Pervez Musharraf’s case, he has actually been tried and convicted too – which would make the possibility of such honours for him even more troubling,” he adds.
Ahmed Bilal says the rules and the grounds for giving such posthumous honours should be considered, and they should not be treated as isolated cases. “If there are already existing rules that allow for a state funeral for an ex-president or an ex-army chief, then we have to clarify whether this is affected by their conviction on such serious grounds as treason, for instance,” he emphasises.
Analyst Zaigham Khan says the military can decide if they want to give him a funeral of their own, but Musharraf should not be given special honors or concessions by the state.
Ali Usman Qasmi reminds us that historically, the Pakistani military has been giving respect to their former army chiefs, regardless of their status or what their legacy was.
He adds that by default, every army chief gets that kind of protocol, because for the institution, it is not about the individual but about institutional power.
“In fact, in the case of Pervez Musharraf, he holds a much larger fan following in the military even today – he is remembered for his very adventurous, courageous, cowboy-ish, aggressive and outspoken kind of demeanour, including his role in the Kargil adventure. He is also remembered for his attempt to project Pakistan’s soft image. He cultivated a kind of commando-like image around himself – for which he got respect from his institution. And the reverse seems to apply for civilians, including presidents. Compare the relatively indifferent attitude towards the funeral of the late former President Mamnoon Hussain, for instance,” Qasmi notes.
What’s the legal status of Musharraf’s conviction?
A Special Court had in 2019 sentenced Pervez Musharraf to death after convicting him for high treason, but the verdict was later overturned by the Lahore High Court (LHC).
An appeal against the high court’s decision filed before the Supreme Court remains unheard so far, which means Musharraf’s conviction over his 2007 act of declaring emergency does not currently stand.
Legal experts are of the view that there currently is no conviction in the field against Musharraf as the special court’s verdict was nullified by the LHC.
Apart from the appeal in treason case pending before the Supreme Court, a case relating to enforced disappearances is also pending adjudication in the Islamabad High Court.
Last month, the IHC had asked the federal government to issue notices to Musharraf and all successive chief executives of the country as to why proceedings should not be initiated against them for subversion of the Constitution in context of the state policy on enforced disappearance.
Lawyer Abdul Moiz Jaferii says that the LHC’s decision has basically rendered the entire special court process redundant and brought it to a naught. He added that the Supreme Court must hear the appeal and take the Lahore High Court’s decision to its logical conclusion.
Barrister Ambreen Qureshi, while commenting on the appeal against LHC’s decision, said that cases will be heard and those without merit will be thrown out. “Considering the current situation of Pakistan, it is better to let go of all political vendetta and strive for what is best for the country only,” she added.
Do ordinary criminals facing illnesses get relief?
Ambreen says that extremely sick or terminally ill prisoners in Pakistan can legally be released on health grounds. “Prisons should be used to deter criminals and not for any other ulterior motives,” she adds.
Lawyer Usama Khawar notes how the Pakistani law is not lenient when it comes to rights of paralysed prisoners. “According to the law and as per a 2015 Supreme Court decision in a paralysed prisoner’s case, there is no bar in hanging an ill prisoner and it is not expressly forbidden by the prison rules.”
Observers say the relief being granted to Musharraf should also be extended to other physically and mentally unwell prisoners or convicts.
Did establishment force PML-N to let Musharraf return?
Meanwhile, the PML-N has been vocal about upholding civilian values and supremacy, chanting ‘Vote ko izzat do’ (respect the vote) since 2017. The top leadership of the party had been vociferously opposing military involvement in politics online and in speeches. But the party’s stance against the establishment has softened after the latter’s supposed ‘neutrality’.
Recently, Prime Minister Shehbaz Sharif authorised the ISI to take over screening of government officials and party Vice President Maryam Nawaz publicly defended his choice to increase military involvement in government’s matters.
When PML-N supremo Nawaz Sharif spoke out in favor of clemency for the man who overthrew his government in 1999, many were surprised.
Senior journalist and analyst Mazhar Abbas suggests it is possible that the military establishment is behind Nawaz Sharif’s willingness to let Musharraf return. He however added that there is precedent to believe that Sharif put differences aside on humanitarian grounds, recalling that he even visited Pakistan Tehreek-e-Insaf (PTI) Chairperson Imran Khan when he was injured during a rally. “Sharif was one of the first people to show up after former prime minister Benazir Bhutto was assassinated.”
Analyst Zaigham Khan says it’s all about optics. “From a humanist angle, you can’t take revenge from a dying person,” he said, adding that such a decision goes against you politically also, because then you’re no longer seen as a democrat or a human rights activist, and instead become a revenge-seeker in the eyes of the public.
“Ultimately, going after someone who is already on the verge of death makes you the very thing you had sought to fight against, and only fuels the narrative of ego-led politics, he adds.
‘No political party stands for civilian supremacy’
However, author and analyst Yousuf Nazar believes that its willingness to let Musharraf return has revealed that PML-N’s historic opposition to military interference has just been a political bargaining chip all along and holds no real weight.
“To be very clear, nobody, as far as the law is concerned, can stop a citizen of Pakistan from returning to the country,” he said, explaining that in that regard, the statements issued by Sharif and Khawaja Asif and the likes were basically meaningless, and instead served as signals to the establishment suggesting subservience.
According to him, when Musharraf was on trial last time, and the PML-N took a stand, the establishment wasn’t happy about it, and managed to pull Musharraf out, which created problems for the PML-N with the establishment.
“This time, they are waving a sort of white flag, signifying implicitly that last time we adopted a policy of confrontation with the establishment, which was a mistake that we will not repeat.”
He said that the selectors remain the same while the selected have changed faces, adding that based on these facts, there is no evidence that the case for civilian supremacy has progressed.
“It is now extremely hypocritical for any major political party to say that they stand for civilian supremacy, because clearly they don’t.”
Yousuf Nazar maintains that neither the chief of army staff, nor a former prime minister of Pakistan has the right or the authority to pardon someone whose crime was committed against an entire nation of almost 242 million people. However, not everyone thinks these recent developments are a contradiction of PML-N’s past stance.
But Mazhar Abbas notes that the PML-N is not withdrawing from the past and dismissing the cases against Musharraf. “They’re merely saying that they will let him come back if he wants, and he won’t be thrown into jail upon his arrival. He added that democrats tend to be more lenient than dictators, and unlike General Zia, who despite international pressure to pardon Bhutto had gone ahead with hanging him, they tend to lean on the merciful side.
Zaigham Khan points out that given the precarious state of the economic and political situation in Pakistan currently, the PML-N took the right path, as any more rigidity could have further damaged an already shaky set up.
Ultimately, the question isn’t whether he should be allowed to return – the law seems to be clear on that: no one can stop him from returning. But what kind of coded message is being sent from debating his return and forgiving his constitutional violations?